Skip to main content

The Proof Needed to Recover Attorney's Fees: A New Frontier


City of Laredo v.  Montano - Texas Supreme Court

Facts:  The relevant portion of this case dealing with attorney's fees centered around an attorney who sought to prove up his attorney's fees at trial almost exclusively based upon his testimony.  At trial, the attorney testified that he had worked for approximately 226 weeks on the case, with a “conservative” estimate of 6 hours per week.  Based on his estimates, he calculated his attorney's fees in the amount of $339,000.  Although the attorney testified at trial as to the work he had done, he did not keep time records nor did he have any invoices, bills, or other tangible evidence to establish the attorney's fees he sought.  The only tangible evidence he could point to were the "thousands and thousands of pages that were accumulated in this case."  

The City of Laredo argued that there was insufficient evidence presented by the attorney to prove up the attorney's fees he sought and emphasized the fact that the attorney had failed to produce time records, billing statements, or even a client agreement.  However, the jury awarded the attorney $339,000 in attorney's fees and the court of appeals upheld the ruling on the grounds that the testimony given by the attorney was sufficient to prove up the attorney's fees he sought.  

Holding:  The Texas Supreme Court expanded upon El Apple, a prior case ruled upon by the Court, in regard to how an attorney should prove up attorney's fees in lodestar cases.  In the present case, the Court clarified that while time records are not always required, at least some documentation is required to support the calculation of attorney's fees.  Merely pointing to the amount of paper produced throughout the course of litigation is not sufficient, by itself, to justify an award of attorney's fees, in light of El Apple

While it appears that on its face that the court's ruling applies only to the lodestar method of calculating attorney's fees, it likely would not hurt a practicing attorney in Texas to use this case as a guide when seeking attorney's fees in any case.  An attorney who is able to provide time records, billing statements, or client agreements, in addition to oral testimony, will be able to build a stronger record and better protect an award of attorney's fees from attack on appeal, in light of the new standard established by the Court.  

Judgment:  The Texas Supreme Court reversed and remanded, regarding the portion of the case dealing with the attorney's fees award.  

Majority Opinion Judge:  Per Curiam

Date:  October 25, 2013

Opinionhttp://www.supreme.courts.state.tx.us/historical/2013/oct/120274.pdf

Comments

Popular posts from this blog

NLRB: Discussion Among Employees About Tip Pooling is Protected Concerted Activity

  This Advice Memorandum from the National Labor Relations Board’s Associate General Counsel, Jayme Sophir, addressed whether employees which discussed and complained about tip pooling at work constituted protected concerted activity. In relevant part, an employer in New York operated a chain of steakhouses.  While tip pooling was in place at these steakhouses, some of the employees objected to it on the grounds that it was not transparent and improperly divided tips among the workers.  Employees were told not to complain or talk to each other about the tip pool and were told that doing so would endanger their jobs.  Despite the employer later attempting to provide some clarity as to how the tips were being divided, rancor still existed among some employees.  At one point, the employees were told by a general manager that some employees that had been talking about the tip pool were “cleared out” and the employer would continue to do so. In the Advice Memorandum,...

Utah Non-Compete Bill Falters in House

Last month, a non-compete bill sponsored by Representative Brian Greene (Republican from Pleasant Grove) & up for vote in the Utah House failed to make it through the Legislature.  The bill sought to ban enforcement of non-competes if they came after a worker was already employed, given no compensation (such as a bonus or promotion) for signing the non-compete, and laid off within six months.  However, by a 22 - 49 vote, the bill was resoundingly defeated after some business groups lobbied to kill the non-compete bill.  One group in particular, The Free Enterprise Utah coalition, argued that the Utah State Legislature should hold off on any changes to non compete laws in the state until a survey about non competes was done among Utah businesses.  Representative Greene had countered this claim and argued that a survey was not needed to show that the current non compete laws in the states allowed many businesses, including some small high tech companies i...

What I've Been Reading This Week

Recently, Equal Employment Opportunity Commission Commissioner, Chai Feldblum, had her re-nomination on the brink, after Utah Republican Senator Mike Lee took steps to block it .  Readers might have heard that late last week, Commissioner Feldblum's re-nomination quietly slipped away and she tweeted out a thank you to supporters and friends, acknowledging that her time at the EEOC was over.  While there has not been much in the way of a further update in regard to that ongoing saga, we wait to see how things will play out at the EEOC, now that it has lost a quorum until additional Commissioners are confirmed by the Senate. For the time being, there are other developments for readers to review this week.  In particular, I call attention to the article on managing a wage & hour audit by the Department of Labor as well as steps an employer can take to better ensure compliance with the ADA. As always, below are a couple articles that caught my eye this week. ...